Barry v. Nuckolls ( 1841 )

Turley, J.

delivered the opinion of the court.

This is an action of assumpsit by the defendant in error against the plaintiff. The declaration contains three counts.' The first, a special count, charging that the plaintiff in error, together with others, organized a Thespian Society for the enacting of plays, and that they rented a house for that purpose from the defendant, and agreed to pay him six dollars a month rent for every month they should so occupy it. The second, is an indebitatus count for work and labor done. And the third, a quantum, meruit count for work and labor done. The proof shows, that some young gentlemen organized the society, and made the contract set forth in the first count; and that the plaintiff in error became a member of the society some months after the contract. The court was requested to charge the jury, that if the contract was made before said plaintiff became a member of the society, he was not bound by it. This the court refused, and charged, that in such a case he would not be bound for the pi’evious, but would be for the subsequent rent, and the jury found accordingly. This charge is certainly erroneous under the state of the pleadings. If the plaintiff in error be liable at all for the rent after he became a member of the society, it is not upon a count framed upon the contract originally made, nor upon an indebitatus or quantum meruit count for work and labor done, but upon a count for use and occupation. Reverse the judgment, and remand it for a new trial.